The closing story in Bray & Gillespie III is remarkable. Here, in Judge Scriven’s own words, is the surprise phone call story of Bray & Gillespie III.

Plaintiff’s most recent substitute counsel, with the assistance of Plaintiff’s computer forensics expert, made a simple telephone call to the software provider and reviewed the IQ Ware computer software system used to capture and produce room folios for the Treasure Island Resort Property and learned two significant and incredible facts. First, Plaintiff, despite all previous demands and court orders for this discovery and despite being under threat of having its entire case dismissed and its counsel severely sanctioned, had never even consulted its software provider to attempt to retrieve the archived documents. Second, the archived files are likely retrievable with minimal effort and at minimal expense and could likely render all folios available for review for the relevant time period — some two years and four months after they were first requested for production by Defendant in discovery and some twenty months after Plaintiff was first ordered by the Court to search thoroughly for and disclose the folio files. Thus, on December 3, 2009, during the Evidentiary Hearing, Plaintiff for the first time disclosed the likely existence of additional Treasure Island room folios and asked that it be allowed, without sanction, again, to cure its abject failure to make complete review and production, claiming that the folios can likely be produced if discovery is, now on the eve of trial, reopened and extended for another four to six week period.

Incredible Ethical Challenges Created by High Technology

Judge Scriven describes this revelation of omitted actions as incredible. That implies highly unusual. But, as a close student of legal practice in e-discovery in America today, it appears to me that their actions all too common, distressingly so. The profession as a whole is critically challenged by technology and the transformation of written evidence. It has all happened much too fast for many lawyers. They do not know how to make that simple telephone call, nor what to say if they did. Many, many attorneys do not work with a forensic expert when needed. They do not work in a bona fide e-discovery team. They have never even heard of such a thing. They do not even <horrors> read my blog!

Although smart, and otherwise generally well-educated, most lawyers suffer from a huge technology knowledge gap. They do not really understand much of the science and engineering of the computer driven world in which they live. This is not something which can be, or should be, easily sluffed off. Indeed, the problem has become so bad as to become an ethical issue.

Here are the two ABA Model Rules of Professional Conduct most implicated by this predicament. These model rules have been adopted by all states with some slight revisions. These fundamental requirements are basic to professional practice and their violation can subject an attorney to a variety or public and private punishments, including, if often repeated after warnings, disbarment.

Rule 1.3 DILIGENCE: A lawyer shall act with reasonable diligence and promptness in representing a client.

These two rules of ethics are the cornerstone of my talks on e-discovery and have been mentioned here often before, both express and implied. Their application to Bray & Gillespie is obvious. Be diligent and make the call. If you do not know how, ask for help. Have a forensic expert with you. If need be, have someone else make the call for you. Your clients deserve it. The Bar demands it.

Sanctions Against the Party, But Not the Attorneys

In spite of the actions of Plaintiff’s prior counsel, Judge Scriven reversed, in part, Magistrate Judge Spaulding’s last sanction order in this case. Judge Spaulding had recommended that the plaintiff’s entire case be dismissed with prejudice.Bray & Gillespie II. Judge Scriven in Bray & Gillespie III affirmed the dismissal with prejudice of all claims related to the last hurricane at issue, Jeanne, but let stand the claims for the earlier hurricanes, Charley and Francis. Judge Scriven agreed with Judge Spaulding’s finding of bad faith conduct concerning the non-production of electronic room folios records, but found that the prejudice to defendant of these actions was limited to the claims for loss of income from hurricane Jeanne.

Judge Scriven also taxed fees against the Plaintiff of $75,000 as an additional sanction, but did not penalize Plaintiff’s prior counsel. Judge Spaulding in Bray & Gillespie II had sanctioned these attorneys for not producing the room folios records. Judge Scriven’s order thus reversed Judge Spaulding on this point, even though she knew that they had not made the simple phone call. The opinion does not provide an explanation, but I suspect Judge Scriven realizes the challenges the average attorney has with technology and may want to give the Bar more warnings before imposing monetary sanctions on outside counsel. (Note, this order does not pertain to an earlier sanctions order against other attorneys for the plaintiff where a national law firm’s attorneys and the firm itself were sanctioned. Bray & Gillespie I. Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009))

Sanction of Dismissal for e-Discovery Misconduct

In dismissing a third of Plaintiff’s claims based on e-discovery misconduct, Judge Scriven specifically notes her obligation under Rule 37 to send a message to other litigants (and their attorneys):

The Court is mindful that the sanction should not be overly harsh, but should be sufficient both to remedy the immediate prejudice suffered by the Defendant and to serve as an example to other parties to “insure the integrity of the discovery process.” Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982).

Judge Scriven then goes on to explain why it was appropriate to dismiss a third of plaintiff’s case for the misconduct of several of its attorneys.

Plaintiff has acted willfully and in bad faith in not producing timely all discovery available and related to the Treasure Island room folios, and, in so doing, Plaintiff has evidenced a pattern of inexcusable disregard for the authority of this Court and the larger civil discovery process. The fact that Plaintiff’s newest counsel discovered with relative ease the existence of this failure and a readily available cure for the gap in discovery highlights Plaintiff’s failure and the failure of its prior counsel in this regard. Therefore, the Court sustains the Magistrate Judge’s finding that Plaintiff’s failure to produce the demanded and court ordered discovery evidences a pattern of inexcusable disregard for the authority of this Court and the larger civil discovery process and warrants imposition of substantial ameliorative and punitive sanctions. …

Further, the Court must be mindful that Plaintiff, by its actions and omissions, has forced the Court to concern itself with whether the Plaintiff’s conduct, if not appropriately sanctioned, would cause “`other parties to . . . feel freer than . . . Rule 37 contemplates they should feel to flout other discovery orders of other District Courts.'” Aztec Steel Co., 691 F.2d at 481 (quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)). To this point, if the only sanction ordered in such scenarios is an extension of the discovery period upon being “caught” in flagrant violation of Court orders demanding timely disclosure, such delays in compliance would be undeterred. Finally, the sanction of costs alone has been previously attempted and has failed in this case as an incentive to force proper compliance.

Thus, as the half-measure of allowing partial introduction of the room folios is untenable, the delay in the trial and the attendant expense to the Defendant is no remedy, and cost-only sanctions have proven ineffective, the Court finds that the most appropriate remedy is to DISMISS with prejudice Plaintiff’s claim for damages arising from or related to any alleged interruption of business at the Treasure Island Property caused by Hurricane Jeanne.

Conclusion

There are important social and ethical lessons to be learned from this case. It is not, as some have suggested, on the same level of bad faith as Qualcomm, which involved intentional misconduct by both the plaintiff and its attorneys. No, this appears to me to be bad faith born out of technological challenges and a fear based refusal to cooperate. Moreover, I have seen no discussion in the Bray & Gillespie opinions of misconduct by the parties; it all appears to have been done by their attorneys, both inside and out.

These distinctions from Qualcomm are ultimately what make Bray & Gillespie so important. These decisions taken together illustrate how the refusal to cooperate can harm the client. They show the importance of competent counsel, of diligent counsel. In the right hands one simple telephone call was able to clear up years of confusion and delay.

The call should have been made at the beginning of the case, not the end. E-discovery lawyers must be brought into a case when it first starts, not when it is falling apart. The obvious competence of successor counsel here was too little, too late. It did nothing but put the final nails in the coffin for the poor plaintiff by making obvious the magnitude of prior counsel’s failures. Yet, in how many cases now pending in state and federal court is that simple telephone call made at any time in the case, early or late? Counsel here were not personally sanctioned, but a message was sent. The integrity of the discovery process is important as Judge Scriven’s opinion recognizes and will be insured by future actions of the court. Counsel that tarries in inviting e-discovery specialists to the table at the beginning of the case, do so at their own peril.

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SUPPLEMENTAL READING: Be sure to read all three Bray & Gillespie cases, if you have not already. They are long, but worthwhile. Also find and review the Sedona Conference paper on databases. It is another valuable resource to have on-hand.

EXERCISE: Database discovery is often troubling for lawyers, but it needn’t be. Just a little study on the subject, including the mentioned Sedona paper will show the way. The answer usually involves getting the client expert involved who knows the database and have them run the right reports. You may also need to have an outside expert involved, as in the Bray & Gillespie case. Vendors can be very helpful with this sort of thing too.

Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!

Copyright Ralph Losey 2015

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Ralph Losey is a practicing attorney who specializes in electronic discovery law. He is a principal in a U.S. law firm with over 50 offices & 800 lawyers where he supervises electronic discovery work and litigation support.
Ralph has written over two million words on law and technology, including six books on electronic discovery. His latest books are "E-Discovery for Everyone" (ABA 2017) and "Perspectives on Predictive Coding" (ABA 2017) (ed. & contributor). His blog is widely read in the industry: "e-DiscoveryTeam.com."
Ralph is the founder and principal author of "Electronic Discovery Best Practices" and "e-Discovery Team Training," a free online course covering all aspects of e-discovery. Ralph's sub-speciality is the search and review of electronic evidence using multimodal methods, including artificial intelligence. He also has a free online training program to teach these advanced methods - the "TAR Course."
Ralph has devoted a month of his time each year since 2013 to research and test various AI-enhanced document review methods. In 2015 and 2016 Ralph and his Team participated in the TREC Total Recall Track experiments sponsored by the National Institute of Standards and Technology.
Ralph has been involved with computers and the law since 1978. His full biography is found at RalphLosey.com.
Ralph is the proud father of two children, Eva M. Losey and Adam Colby Losey, a high-tech lawyer married to another e-discovery lawyer, Cat Jackson Losey, and, best of all, Ralph has been married since 1973 to Molly Friedman Losey, a mental health counselor and life-long friend.